Capt. Alan Kennedy holds a copy of the civil lawsuit against superiors in the Colorado National Guard after he was reprimanded for publishing op-eds about his participation in a 2020 Black Lives Matter protest. (Carl Payne for Colorado Newsline)
An Army review board overturned a reprimand that a then-captain in the Colorado National Guard received from Guard leadership in 2020 after he participated in a Black Lives Matter march and wrote an opinion column criticizing his leaders for investigating that behavior.
Capt. Alan Kennedy, who as of December serves in the U.S. Army Reserve, called the reversal, issued on Jan. 3, “a victory for the First Amendment.”
“Do service members lose all of their constitutional rights simply because they take an oath to support and defend the Constitution? If the First Amendment means anything, the answer is ‘no,’” he said.
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Kennedy, who was not on duty as a Colorado Army National Guard officer at the time, attended a Denver Black Lives Matter protest in May 2020 and was tear-gassed. This was the height of national mobilization over the murder of George Floyd and police brutality against Black people. Kennedy wrote an opinion column for the Denver Post about his experience.
Col. Charles Beatty, the Colorado Army National Guard’s chief of staff, then ordered an investigation into whether Kennedy violated a Department of Defense instruction that prohibits off-duty troops from “participating in off-post demonstrations … (where) violence is likely to result.”
Kennedy then wrote a second opinion column for Colorado Newsline about the investigation into his protest action, writing that “there is nothing wrong with a part-time National Guard member writing a letter to the editor or op-ed, participating in a peaceful protest, or exercising any constitutional right, on their own time and dime.”
That prompted a second investigation and a permanent general officer memorandum of reprimand, or GOMOR, issued in September 2020 by Brig. Gen. Douglas Paul. The reprimand was for criticizing the chain of command and would have essentially killed Kennedy’s military career.
The Department of the Army Suitability Evaluation Board officially removed that reprimand last week, ruling that Kennedy “provided clear and convincing evidence which shows the GOMOR is inaccurate, unjust, or otherwise flawed.”
Specifically, the board found that Army leadership’s false statements that Black Lives Matters protests are inherently violent are evidence that they incorrectly applied the Defense Department instruction and unconstitutionally targeted Kennedy’s freedom of expression.
Though the reprimand was removed, Kennedy is still pursuing a federal court case about that Defense Department instruction. The litigation asks whether the government can prohibit off-duty, out-of-uniform service members from peacefully protesting. That rule, Kennedy said, creates a chilling effect on the freedom of service members to protest and write about it. In this case, it was applied to a Black Lives Matter protest, but Kennedy worries it could be extended to any peaceful protest.
“Despite the Army’s decision to overturn the reprimand and the related evaluation, the Army has not addressed the constitutionality of the regulation itself,” he said. “That’s what we need the court to decide.”
Kennedy transferred to the Army Reserve and is a lecturer of public policy at the College of William & Mary in Williamsburg, Virginia.Kennedy_DASEB_Decision_03JAN22_redacted (1)
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